APPEAL
FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05CV-16-147]
HONORABLE GAIL INMAN-CAMPBELL, JUDGE
TS
Branch Law Firm PLLC, by: Tabatha Branch, for appellant.
Goheen
Legal Services, LLC, by: R. Jake Goheen; and Jones Law Firm,
by: F. Parker Jones III, for appellee Clay Maxey Ford, LLC.
Wright, Lindsey & Jennings LLP, by: Michael A. Thompson
and Antwan D. Phillips, for appellee Ford Motor Company.
KENNETH S. HIXSON, JUDGE
On June
6, 2016, appellant Betty Rorie filed a complaint for damages
against appellees Clay Maxey Ford, LLC, and Ford Motor
Company, alleging fraud and breach of warranty in relation to
Rorie's purchase of an allegedly defective vehicle. On
October 6, 2016, the trial court entered an order dismissing
Rorie's complaint for failure to obtain service on the
appellees within 120 days. On March 1, 2018, the trial court
entered an order setting aside the October 6, 2016 dismissal
order.[1] On May 14, 2018, the trial court entered
an order vacating the March 1, 2018 order, finding on further
review that it lacked jurisdiction to set aside the October
6, 2016 dismissal order. Rorie now appeals from the May 14,
2018 order, arguing that because the appellees had been
properly served with the complaint, the trial court erred in
vacating its March 1, 2018 order that had set aside the
October 6, 2016 dismissal order. We affirm.
Critical
to this case is Rorie's failure to appeal from the
October 6, 2016 order that dismissed her complaint. Arkansas
Rule of Appellate Procedure-Civil 4 states that "a
notice of appeal shall be filed within thirty (30) days from
the entry of the judgment, decree or order appealed
from." Ark. R. App. P.-Civ. 4(a). The timely filing of
certain motions may extend the time for filing a notice of
appeal. See Ark. R. App. P.-Civ. 4(a), (b). In this
case, Rorie did not timely appeal from the October 6, 2016
dismissal order, nor did she file a motion to vacate the
order or any other motion that would have extended the time
for filing the notice of appeal. In this appeal, Rorie argues
that the October 6, 2016 dismissal order was entered in error
because the appellees had been properly served. That argument
would have been cognizable had Rorie timely appealed from
October 6, 2016 dismissal order. However, because Rorie
declined to appeal from that order, this argument comes too
late.
The
only order that Rorie has timely appealed from is the May 14,
2018 order that vacated the March 1, 2018 order that had set
aside the October 6, 2016 dismissal order.[2]In the May 14,
2018 order being appealed, the trial court vacated its March
1, 2018 order based on its finding that it lacked
jurisdiction to set aside the October 6, 2016 dismissal
order. In this appeal, Rorie does not challenge the trial
court's finding that it lacked jurisdiction to set aside
the October 6, 2016 dismissal order or offer any argument as
to why the trial court had jurisdiction to do so. Instead,
Rorie simply argues that she had timely served the
defendants-an argument which should have been made in a
direct appeal from the October 6, 2016 order.[3]
The
March 1, 2018 order that purported to set aside the October
6, 2016 order was entered seventeen months after the original
order was entered. Arkansas Rule of Civil Procedure 60(a)
allows a court to "modify or vacate a judgment, order or
decree . . . within ninety days of its having been filed with
the clerk." After ninety days, the court's power to
vacate or modify a judgment is limited by Rule 60(c) to
reasons such as fraud. In its March 1, 2018 order, the trial
court gave no reason why it had jurisdiction to set aside the
October 6, 2016 order seventeen months after it was entered,
and it subsequently concluded that it lacked jurisdiction. In
this appeal, Rorie makes no argument that any of the limited
exceptions set forth in Rule 60(c) are applicable.
It is
well established that it is within the discretion of the
trial court to determine whether it has jurisdiction under
Rule 60 to set aside a judgment. Grand Valley Ridge, LLC
v. Metro. Nat'l Bank, 2012 Ark. 121, 388 S.W.3d 24.
In this case, the trial court ultimately concluded that it
lacked jurisdiction to set aside the October 6, 2016 order
dismissing Rorie's complaint against the appellees. Rorie
does not argue on appeal that this was an abuse of
discretion, nor does she give any reason as to why the trial
court had jurisdiction to set aside the dismissal order.
Therefore, the May 14, 2018 order reinstating the October 6,
2016 dismissal order is affirmed.
Affirmed.
Abramson and Virden, JJ., agree.
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